Conley v. Distefano

United States District Court, D. New Jersey

June 29, 2018

KEVIN CONLEY, Plaintiff,v.SCO J. DISTEFANO et al., Defendants.

MEMORANDUM OPINION

FREDA
L. WOLFSON, U.S.D.J.

I.
INTRODUCTION

Plaintiff
Kevin Conley (“Mr. Conley” or
“Plaintiff”) is a state prisoner incarcerated at
East Jersey State Prison in Rahway, New Jersey. He is
proceeding pro se in this civil rights action,
asserting claims under 42 U.S.C. § 1983. Presently
before the Court is defendants SCO J. Distefano, SCO D. Shaw,
and Kenneth Nelsen's (collectively,
“Defendants”) third motion for judgment on the
pleadings, pursuant to Federal Rule of Civil Procedure 12(c).
For the following reasons, the motion is granted and Mr.
Conley's Amended Complaint is dismissed with prejudice.

II.
BACKGROUND

The
facts underlying this action were recounted in detail in the
Court's previous opinion granting Defendants' second
motion for judgment on the pleadings. (See Op., ECF
No. 71.) As a brief background, Mr. Conley objects to a
practice at New Jersey State Prison, where he was previously
incarcerated, of posting signs on cell doors that indicated
each prisoner's birthdate in conjunction with his full
name.[1] (See ECF No. 71; Am. Compl., ECF
No. 75.) His initial Complaint alleged that this practice
violated his constitutional rights to informational privacy
and procedural due process, and it also asserted that
Defendants breached their duty to protect inmates and caused
a state-created danger. (See ECF No. 1 ¶¶
90-189.)

After
answering, Defendants filed a Rule 12(c) motion for judgment
on the pleadings, arguing that Mr. Conley's claims under
state law and federal criminal law should be dismissed.
(Mot., ECF No. 46.) The Court granted the motion to the
extent that the Complaint could be construed to have asserted
criminal-related claims. (Mem. Op., ECF No. 61; Order, ECF
No. 62.)

Defendants
subsequently filed a second Rule 12(c) motion seeking
dismissal of the constitutional claims. (ECF No. 63.) After
assessing the applicable precedent, the Court found no right
to privacy in birthdates and names alone, because “the
Court cannot conclude that a persons' birthdate is
particularly ‘intimate or personal' or that
birthdates fall ‘within an individual's reasonable
expectations of confidentiality.'” (ECF No. 71 at
8-13 (quoting Malleus v. George, 641 F.3d 560, 564
(3d Cir. 2011)).) The Court found that Mr. Conley failed to
allege a due-process violation, as he had not established a
liberty or property interest in the protection of information
related to his birthdate. (Id. at 13-14.) The Court
further found that an increased risk of identity theft would
not implicate the Cruel and Unusual Punishment Clause of the
Eighth Amendment, and that Mr. Conley's claim under the
state-created-danger theory was barred by the
“more-specific-provision rule.”[2] (Id. at
14-15.) Accordingly, the Court granted Defendants'
motion, but permitted Mr. Conley a final opportunity to
replead his Eighth and Fourteenth Amendment claims. (See
Id. at 15; Order, ECF No. 72.)

Mr.
Conley has now filed an Amended Complaint, which asserts
causes of action for violations of his due-process rights
under the Fourteenth Amendment and deliberate indifference to
a serious risk of harm under the Eighth Amendment.
(See ECF No. 75 ¶¶ 106-231.) Mr. Conley
has not, however, repleaded the claim for violation of his
constitutional right to privacy. (See id.) But,
rather, as in his original Complaint, Mr. Conley alleges that
openly posting birthdates has no legitimate penological
purpose, since birthdates and other information are readily
available to corrections staff in other places, and that the
New Jersey Administrative Code requires prisons to protect
inmate personal information. Mr. Conley avers that permitting
publication of this personal information to other prisoners
violates various New Jersey Statutes and certain provisions
of the New Jersey Administrative Code. Mr. Conley theorizes
that posting inmate birthdates creates a heightened risk of
identity theft and renders inmates more likely to be
victimized after their birthdays, when other prisoners may
assume they have received monetary gifts. (See id.)
The Amended Complaint, like the original Complaint, seeks
only declarative and injunctive relief. (Id. pp.
52-53.)

III.
THE PRESENT MOTION AND ANALYSIS

Now,
Defendants, again, move for judgment as a matter of law on
Mr. Conley's claims under Rule 12(c). (ECF No. 76.) They
argue that Mr. Conley has failed to correct the defects that
led to the dismissal of the original Complaint and has
admitted that he had suffered no harm from the posting of his
birthdate. (Letter Br., ECF No. 76-1, at 1-2, 7-8.) The Court
has received no opposition to this motion.

The
Court previously dismissed Mr. Conley's due-process claim
on the basis that he had failed to show a liberty or property
interest in the non-disclosure of his birthdate. (ECF No. 71
at 13-14.) While the Amended Complaint contains extensive
discussion of the policies and concerns that Mr. Conley
alleges that Defendants overlooked or ignored when deciding
to post birthdates within the prison, it still fails to
adequately allege a protected liberty or property interest.
(See ECF No. 75 ¶¶ 106-202.) As the Court
noted in its prior Opinion, liberty interests are
constitutionally created, while property interests arise from
independent sources such as state rules or understandings
that confer specific benefits. See Perry v.
Sindermann, 408 U.S. 593, 601 (1972); Bd. of Regents
of State Colleges v. Roth, 408 U.S. 564, 572-78 (1972).
“‘To have a property interest in a benefit, a
person clearly must have more than an abstract need or
desire' and ‘more than a unilateral expectation of
it. He must, instead, have a legitimate claim of entitlement
to it.'” Town of Castle Rock v. Gonzales,
545 U.S. 748, 756 (2005) (quoting Bd. of Regents of State
Colleges, 408 U.S. at 564). Here, Mr. Conley does not
allege a liberty interest, but, instead, he appears to allege
that the prison's non-dissemination, prior to March 2013,
of inmate birthdates, as well as its ongoing protection of
other inmate information, pursuant to certain statutory
protections, conferred a property interest in nondisclosure
of birthdates in general. (See ECF No. 75
¶¶ 146-191.) However, Mr. Conley's theory of
his property interest disregards the fact that his birthdate
is, and has been, readily ascertainable from the Department
of Corrections website and from his criminal records, which
is public information. (See ECF No. 71 at 10-11
(citing Nunez v. Pachman, 578 F.3d 228, 232 (3d Cir.
2009)).) Indeed, the Court previously reviewed the statutes
and code provisions that Mr. Conley cites, and they contain
no protection for disclosure of birthdates. (See ECF
No. 71 at 11 & nn. 10 & 11.) Nothing Mr. Conley has
added in his Amended Complaint has changed the Court's
prior decision.

The
Court previously dismissed the claim that the posting of Mr.
Conley's birthdate constituted a failure to protect in
violation of the Cruel and Unusual Punishment Clause, because
the alleged increased risk of identity theft did not show
that Defendants knowingly disregarded a serious risk to
health or safety. (See ECF No. 71 at 14 (citing
Farmer v. Brennan, 511 U.S. 825, 837 (1994)).) The
Court's analysis remains the same as to Mr. Conley's
new arguments concerning an increased risk of identity theft.
In his Amended Complaint, Mr. Conley additionally asserts
that posting of birthdates permits “miscreant
inmates” to determine when another prisoner may have
received monetary gifts for his birthday, thus making that
prisoner more vulnerable to “scams through actual or
implied threats of violence.” (See ECF No. 75
¶¶ 206-212.) Under this theory, the connection
between the posting of birthdates and the risk of harm to
inmates is highly attenuated and appears entirely
speculative. Mr. Conley admits that he “has not yet
been victimized by posting his birthdate, ” and he
provides no facts supporting the claim that inmates are
particularly targeted around their birthdays. (See
ECF No. 75 ¶¶ 206- 218.) Accordingly, Mr.
Conley's Amended Complaint is dismissed.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Finally,
Defendants ask for dismissal with prejudice. (ECF No. 76-1 at
8.) While District Courts generally should permit curative
amendments, a complaint may be dismissed with prejudice if
permitting further amendment would be inequitable or futile.
See Grayson v. Mayview State Hosp., 293 F.3d 103,
110 (3d Cir. 2002); see also Connelly v. Steel Valley
Sch. Dist., 706 F.3d 209, 217 (3d Cir. 2013);
Phillips v. Cty. of Allegheny, 515 F.3d 224, 236 (3d
Cir. 2008); Shane v. Fauver, 213 F.3d 113, 116 (3d
Cir. 2000). The Court previously dismissed Mr. Conley's
claims because they were not premised on established
constitutional protections, a defect that is obviously more
difficult to cure than, for example, a failure to plead
sufficient involvement of a defendant or a failure to plead
resulting harm. Nonetheless, the Court gave Mr. Conley an
opportunity to replead his claims. While Mr. Conley clearly
devoted significant effort in drafting his 55-page Amended
Complaint within the 60 days the Court permitted him to do
so, he has come no closer to stating a ...

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